J-S49024-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JOSUE BREBAN,

Appellant No. 239 MDA 2015 

Appeal from the Judgment of Sentence entered December 18, 2014,

in the Court of Common Pleas of Dauphin County,

Criminal Division, at No(s): CP-22-CR-0002014-2014

and CP-22-CR-0004812-2014

BEFORE: BENDER, P.J.E., ALLEN, and OLSON, JJ.

MEMORANDUM BY ALLEN, J.: FILED AUGUST 20, 2015

Josue Breban (“Appellant”) appeals from the judgment of sentence 

imposed after he pled guilty to one count of burglary and one count of retail 

theft.1

The pertinent facts and procedural history are as follows: 

Docket No. 2014 CR 2014: On March 17, 2014, Appellant and two 

co-conspirators entered a house located at 2312 Brookwood Street in 

Harrisburg, and took numerous items including a 9 mm pistol, jewelry, 

passports, birth certificates, a safe, a checkbook and a bankcard. N.T., 

10/7/14, at 4. A subsequent police investigation yielded fingerprints which 

were run through the Pennsylvania Automated Fingerprint Identification 

____________________________________________

1 18 Pa.C.S.A. §§ 3502(a)(2) and 3929(a).
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System and found to match Appellant’s. Affidavit of Probable Cause, 

3/27/14. Appellant was subsequently arrested, and on October 7, 2014, he 

entered an open plea of guilty to burglary.

Docket No. 4812-2014: On June 30, 2014, Appellant and Kelly 

Bauman entered Giant Foods, and acting jointly, stole $166.69 worth of 

meat, poultry, and seafood. N.T., 12/18/14, at 3. Appellant was 

subsequently arrested and charged with retail theft. On December 18, 

2014, Appellant entered an open plea of guilty to retail theft.

That same day, on December 18, 2014, a sentencing hearing 

commenced at both docket numbers. The trial court sentenced Appellant to 

a term of imprisonment of 21⁄2 to 5 years for burglary, and a consecutive 2 

years of state supervision for retail theft. Appellant filed a post-sentence 

motion on December 23, 2014, which the trial court denied on January 5, 

2015. This appeal followed. 

On February 5, 2014, the trial court directed Appellant to file a 

concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 

1925(b). Appellant complied and on March 2, 2015, the trial court filed a 

memorandum opinion in which it stated that its January 5, 2015 order 

adequately addressed the allegations of error raised by Appellant.

On appeal, Appellant presents one issue for our review:

I. Whether the trial court erred in denying Appellant’s PostSentence Motion for Modification of Sentence where 

Appellant’s sentence was excessive and unreasonable in light 

of the alleged gravity of the offense, the protection of the 

public, and Appellant’s rehabilitative needs and where the 
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punitive measures inherent in the sentencing scheme could 

have been accomplished by the imposition of a lesser 

sentence?

Appellant’s Brief at 5.

Appellant’s sole issue on appeal is that the trial court abused its 

sentencing discretion when it imposed a sentence of 21⁄2 to 5 years for 

burglary.

To reach the merits of a discretionary sentencing issue, we 

conduct a four-part analysis to determine: (1) whether 

appellant has filed a timely notice of appeal, Pa.R.A.P. 902,

903; (2) whether the issue was properly preserved at 

sentencing or in a motion to reconsider and modify sentence, 

Pa.R.Crim.P. [708]; (3) whether appellant's brief has a fatal 

defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial 

question that the sentence appealed from is not appropriate 

under the Sentencing Code, 42 [Pa.C.S.A.] § 9781(b).

Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007).

Appellant has preserved his claim by filing a timely post-sentence 

motion and notice of appeal. Additionally Appellant has included in his brief 

a concise statement pursuant to Pa.R.A.P. 2119(f). Appellant’s Brief at 9-

12. Therefore, we proceed to determine whether Appellant has raised a 

substantial question for our review. 

Appellant argues that the trial court abused its discretion when it 

imposed a sentence that “was excessive and unreasonable and constitutes 

too severe a punishment”, id. at 9, 15, and which was beyond the 

aggravated range of the sentencing guidelines, and in so doing, the trial 

court failed to give proper consideration to the appropriate sentencing 

factors and failed to state on the record the reasons for the sentence. Id. 
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at 9-17. Such claims raise a substantial question for our review. See 

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1266 (Pa. Super. 2014) 

quoting Commonwealth v. Dodge, 77 A.3d 1263, 1272, n.8 (Pa. Super. 

2013) (“[A]rguments that the sentencing court failed to consider the factors 

proffered in 42 Pa.C.S. § 9721 does present a substantial question, whereas 

a statement that the court failed to consider facts of record, though 

necessarily encompassing the factors of § 9721, has been rejected.”); 

Commonwealth v. Eby, 784 A.2d 204, 206 (Pa. Super. 2001) (“A 

substantial question will be found where the defendant advances a colorable 

argument that the sentence imposed is either inconsistent with a specific 

provision of the code or is contrary to the fundamental norms which 

underlie the sentencing process. A claim that the sentencing court imposed 

an unreasonable sentence by sentencing outside the guideline ranges 

presents a ‘substantial question’ for our review.”); Commonwealth v. 

Felmlee, 828 A.2d 1105, 1107 (Pa. Super. 2003) (en banc) (a substantial 

question is raised where an appellant alleges that the sentencing court 

erred by imposing an aggravated range sentence without consideration of 

mitigating circumstances). We therefore proceed to review Appellant’s 

claim.

“Sentencing is a matter vested in the sound discretion of the 

sentencing judge, and a sentence will not be disturbed on appeal absent a 

manifest abuse of discretion.” Commonwealth v. Garcia-Rivera, 983 

A.2d 777, 780 (Pa. Super. 2009).
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More specifically, 42 Pa.C.S.A. § 9721(b) offers the following 

guidance to the trial court's sentencing determination:

[T]he sentence imposed should call for confinement 

that is consistent with the protection of the public, 

the gravity of the offense as it relates to the impact 

on the life of the victim and on the community, and 

the rehabilitative needs of the defendant.

***

The ... weighing of factors under 42 Pa.C.S. § 9721(b) [is]

exclusively for the sentencing court, and an appellate court 

could not substitute its own weighing of those factors. The 

primary consideration, therefore, is whether the court imposed 

an individualized sentence, and whether the sentence was 

nonetheless unreasonable for sentences falling outside the 

guidelines, or clearly unreasonable for sentences falling within 

the guidelines, pursuant to 42 Pa.C.S. § 9781(c).

Commonwealth v. Bricker, 41 A.3d 872, 875-876 (Pa. Super. 2012) 

(citations omitted). 

Section 9781(c) specifically defines three instances in which the 

appellate courts should vacate a sentence and remand: (1) the sentencing 

court applied the guidelines erroneously; (2) the sentence falls within the 

guidelines, but is “clearly unreasonable” based on the circumstances of the 

case; and (3) the sentence falls outside of the guidelines and is 

“unreasonable.” 42 Pa.C.S. § 9781(c). Id. at 876 .

“[T]he term ‘unreasonable’ generally means a decision that is either 

irrational or not guided by sound judgment. [A] sentence can be defined as 

unreasonable either upon review of the four elements contained in § 

9781(d) or if the sentencing court failed to take into account the factors 

outlined in 42 Pa.C.S.A. § 9721(b).” Commonwealth v. Daniel, 30 A.3d 
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494, 497 (Pa. Super. 2011), quoting Commonwealth v. Walls, 926 A.2d 

957 (Pa. 2007). However, “rejection of a sentencing court's imposition of 

sentence on unreasonableness grounds [should] occur infrequently, 

whether the sentence is above or below the guidelines ranges.” 

Commonwealth v. Macias, 968 A.2d 773, 777 (Pa. Super. 2009) quoting

Walls, 926 A.2d at 964. 

Pursuant to 42 Pa.C.S.A. § 9871, an appellate court must have regard 

for the following statutory factors in our review of the certified record: (1) 

the nature and circumstances of the offense and the history and 

characteristics of the defendant, (2) the opportunity of the sentencing court 

to observe the defendant, including any presentence investigation, (3) the 

findings upon which the sentence was based, and (4) the guidelines 

promulgated by the commission. 42 Pa.C.S.A. § 9871(d)(1)-(4). 

“In every case where the court imposes a sentence ... outside the 

guidelines adopted by the Pennsylvania Commission on Sentencing ... the 

court shall provide a contemporaneous written statement of the reason or 

reasons for the deviation from the guidelines. 42 Pa.C.S.A. § 9721(b). 

However, [t]his requirement is satisfied when the judge states his reasons 

for the sentence on the record and in the defendant's presence ... in open 

court.” Commonwealth v. Antidormi, 84 A.3d 736, 761 (Pa. Super. 

2014).

[Section 9721(b)] requires a trial judge who intends to sentence 

a defendant outside the guidelines to demonstrate on the 
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record, as a proper starting point, his awareness of the 

sentencing guidelines. Having done so, the sentencing court 

may deviate from the guidelines, if necessary, to fashion a 

sentence which takes into account the protection of the public, 

the rehabilitative needs of the defendant, and the gravity of the 

particular offense as it relates to the impact on the life of the 

victim and the community, so long as he also states of record 

the factual basis and specific reasons which compelled [him] to 

deviate from the guideline range.

***

The court's statement of reasons for deviating from the 

guidelines serves not only as a record of the court's rationale for 

the deviation but also as evidence that the court considered the 

guidelines. We cannot analyze whether there are adequate 

reasons for the deviation unless it is first apparent that the 

court was aware of, and considered the guidelines.

Commonwealth v. Johnson, 666 A.2d 690, 693 (Pa. Super. 1995) 

(citations omitted). 

Here, for Appellant, who had a prior record score of 3, the guidelines 

recommended for burglary a standard range of sentence of 15 to 21 

months, an aggravated range sentence of up to 27 months, and a mitigated 

range sentence of not less than 9 months. N.T., 8/2/12, at 11. Appellant’s 

sentence of 21⁄2 to 5 years (30 to 60 months) fell outside the aggravated 

range of the guidelines. 

At the sentencing hearing, the trial court heard from the Assistant 

District Attorney, who noted that Appellant was 62 years old and “is 

regarded as a vulnerable older person”, and recommended a standard 

range sentence. N.T., 12/18/14, at 5-6. The trial court then heard from 

Appellant’s counsel, Appellant’s mental health coordinator, Michael Keefer, 
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and Appellant’s girlfriend, Kelly Bauman. N.T., 12/18/14, at 5-15. The trial 

court – without providing any reasons on the record for its sentence – then 

imposed a sentence for burglary of 21⁄2 to 5 years, which is above the 

aggravated range of the guidelines. Id. at 16-17.

“The general principle underlying the imposition of a sentence calls for 

the balancing of public protection, the gravity of the offense and, 

particularly, the rehabilitative needs of the defendant. 42 Pa.C.S.A. § 

9721(b); The only constraints placed on the court's discretion in sentencing 

matters are that the sentence imposed must be within the statutory limits; 

the record must show that the court considered the sentencing guidelines in 

light of the above balancing standard; and, if the court deviates from the 

sentencing guidelines, the record must demonstrate a contemporaneous 

statement of reasons for the departure.” Commonwealth v. Jones, 272, 

640 A.2d 914, 917 (Pa. Super. 1994) (citations omitted). 

The trial court is not bound by the Commonwealth’s sentencing 

recommendations, as sentencing is a matter vested in the sound discretion 

of the sentencing judge. Garcia-Rivera, 983 A.2d at 780. However, while 

sentencing judges have broad discretion, they do not have “unfettered or 

unchecked discretion.” Commonwealth v. Monahan, 860 A.2d 180, 182 

(Pa. Super. 2004) (citations omitted). Therefore, when a sentence exceeds 

the aggravated range of the guidelines and there is an allegation of 

excessiveness, this Court must review the record to determine whether 

there was an abuse of discretion. Id. 
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Upon review, we agree with Appellant that the reasons for the trial 

court’s upward deviation were not clearly stated on the record as required 

by section 9721(b) of the Sentencing Code. The record is devoid of any 

statement by the trial court on the record, or contemporaneous written 

statement containing the reasons for its departure from the guidelines. 

Although the trial court in its order denying Appellant’s post-sentence 

motion did set forth various reasons for its sentence, our Court has 

regularly “rejected the argument that the failure to state reasons at the 

time of sentencing can be remedied by stating them in a later opinion.” 

Commonwealth v. Harris, 457 A.2d 572, 574 (Pa. Super. 1983).

Based on the foregoing, we conclude that the trial court in imposing 

its sentence failed to demonstrate that it had adequately considered the 

relevant sentencing factors, and failed to state the “factual basis and 

specific reasons” which compelled the upward departure from the 

guidelines. Johnson, supra. Although the trial court referenced the presentence investigation report, the trial court did not state that it considered 

it in deviating from the guidelines, or how Appellant’s circumstances were 

so atypical as to warrant imposition of a sentence in excess of the 

guidelines. Also, while the trial court was informed that Appellant had a 

prior record, the trial court did not set forth on the record an indication that 

it was cognizant of that prior record or the relevant guideline ranges, or 

indicate that it was aware of and considered the sentencing guidelines 

before electing to depart from them. Nor does the record reflect that, at 
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the sentencing hearing, the trial court took into account the relevant 

sentencing factors enumerated in § 9721(b) -- including the protection of 

the public, the gravity of the offense as it relates to the impact on the life of 

the victim and on the community, and Appellant’s rehabilitative needs. 

Accordingly, we are constrained to vacate the judgment of sentence and 

remand for re-sentencing. 

Judgment of sentence vacated. Case remanded for re-sentencing. 

Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/20/2015